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Catherine O'connor v. Dr. Bard Levey

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 13, 2011

CATHERINE O'CONNOR,
RESPONDENT,
v.
DR. BARD LEVEY,
APPELLANT.

Appeal from a judgment of the Justice Court of the Town of Cortlandt, Westchester County (Gerald M. Klein, J.), entered June 15, 2009. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,134.50.

O'Connor v Levey

Decided on April 13, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

In this small claims action, plaintiff seeks to recover damages resulting from defendant's alleged improper performance of dental services. After a non-jury trial, the Justice Court awarded plaintiff the principal sum of $1,134.50.

Since plaintiff failed to establish, through expert testimony, that defendant departed from the requisite standard of dental practice during plaintiff's dental treatment, and that such departure, if any, was a substantial factor in bringing about her injuries, she did not establish that defendant was liable for dental malpractice (see e.g. Cosme v Bauer, 27 Misc 3d 130[A], 2010 NY Slip Op 50638[U] [App Term, 9th & 10th Jud Dists 2010]; Cava v Fox, 22 Misc 3d 132[A], 2008 NY Slip Op 52648[U] [App Term, 9th & 10th Jud Dists 2008]). This proof may not be dispensed with merely because plaintiff chose to pursue her claim in the Small Claims Part of the court (see Cava, 22 Misc 3d 132[A], 2008 NY Slip Op 52648[U]; see also Crenna v Omnicare Dental, 9 Misc 3d 127[A], 2005 NY Slip Op 51503[U] [App Term, 1st Dept 2005]).

Our review is limited to determining whether the judgment of the Justice Court provided the parties with substantial justice according to the rules and principles of substantive law (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). As no expert testimony was introduced at trial, we find that the Justice Court's determination as to defendant's liability did not comport with the small claims mandate that "substantial justice" be done between the parties. Accordingly, the judgment is reversed and the action dismissed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: April 13, 2011

20110413

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